The DOJ abdicates its ethical responsibility

I think this is too late for the consultation process, but since I am happy with the formulation, I'd like to share my argument for the appeal court overruling the DOJ/Microsoft settlement and pursuing a breakup.

I believe that it is the responsibility of the Department of Justice,
and not Microsoft, to protect the economic interests of the computer
industry by protecting competetion and innovation. The DOJ strongly
argued for this position in its suit against Microsoft, but in its
recent settlement it has reversed its position, apparently concluding
that what is good for Microsoft is good for the software industry. If
the DOJ truly believes this, then it should appeal the current
verdict. To reverse its previous legal position without arguing for
this reversal in court is unethical, because this constitutes a vacation of
its responsibility to uphold the public interest.

I think the above conclusion is inescapable if we accept the following
theses:

Microsoft's responsibility to its shareholders entails its
aggressive exploitation of the whole of its competitive
strengths: Microsoft has pursued a clear and consistent position
in court. While Microsoft's performance in Judge Jackson's court
may indicate that Microsoft tampered with evidence, where it stands
in respect to its position as monopoly has been clearly argued with
both conviction and integrity. It is this: the lesson learned from
IBM's troubles with antitrust suits in the 1980s is that a dominant
business in the computer industry can only protect its shareholders
interests by maintaining its monopoly without being intimidated by
the threat of antitrust legislation.

In Microsoft's business, only the paranoid survive:
Furthermore, for Microsoft to maintain its monopolies in an industry
that changes as quickly as the computer industry means that it must
extend its monopoly to any new market whose products threaten to
displace its current monopolies. Microsoft understands that its
responsibility to shareholders requires it to leverage its existing
monopoplies to intimidate and undermine rivals in other markets
whose products possess this power; this is the principal conclusion
of Judge Jackson in the trial brought by the DOJ.

Microsoft's monopolies injure business innovation, technical
innovation and price competition in the computer industry:
Especially they undermine the competitive strengths of alternatives
developed by companies too small to challenge Microsoft in the courts,
such as Be's BeOS and Dave Winer's Frontier, and of contributions by
developers in the free software community such as Linux and
Zope.

To maintain competition in the markets in which Microsoft
dominates through its advantages as a monopolist requires Microsoft to
be successfully limited in the courts.

To restore competition to these markets without infringing
Microsoft's `right to innovate' requires a structural rather than a
behavioural remedy: Microsoft is a `serial recidivist': there is a
long history of bevioural remedies that have failed to deter Microsoft
from effective exploitation of its monopoly position.

The DOJ argued strongly for a break up of Microsoft in the trial
courts. If it no longer believes that Microsoft's monopoly position
requires effective legal limits, it has a duty to make its reaons for
beliving this public. Its failure to do so is a very gross failure of
its ethical and legal mandate to protect competition from monopoly
abuse in the computer industry. I believe that the courts should pursue a structural remedy, ie. a breakup of Microsoft, irrespectively of the DOJ's new position in the proposed settlement.

In the real world, appearances matter, and surprisingly small efforts can make a difference. I don't suppose it is likely that making a clear case that the DOJ is failing to support the public interest will make any difference at all, but it is possible.

The appeal judge apparently may take the contributions made under the Tunney act seriously enough to want to answer arguments made there. If my argument is directly or indirectly addressed in the appeal judge's final verdict, then I will by happy with the effort I have made. Check the link I posted above.

I referenced this thread in my letter to the process, and I'd like this to be a place that *possibly* might be read by non-free-software types. While I think there are reasons to be angry about the new Bush administration (in particular: GWB gave clear signals in April 2000 that he would *not* interfere with the DOJ vs. MS process), I don't think it's a good place to complain about the elected government.

The system seems to have slipped away from serving the people to
serving corporations. This is broken, and it makes me sad. Luckilly I
can leave and live somewhere else. Unfortunately because most other
places in the world aren't so focuessed on corporations I'll have a hard
time finding as rich a work life.

So given the state of the US government and US politics I think it
would be inappropriate for Microsoft to be broken up. I think this crazy
experiment needs to be played out to its conclusing if only to warn
future generation about the risks of making bribery and corruption a
formal part of a political system. And it will fall apart. This sort of
system fell apart in Indonesia and its falling apart in Malaysia. The
trigger then was an economic downturn, perhaps this will be the upside
of what we're seeing now.

I sent in this. I hope it doesn't end up in the bit bucket,
but expect it will. The slim chance that it might make a
difference was enough for me. (I sure would like to see those
perjury trials!)

1. It appears to me that all the proposed settlements treat the company
as if it had not yet been convicted. Worse, they ignore the company's
prior history of consciously circumventing the spirit and letter of
court orders. This is a company whose officers have frequently denied
the authority of the government to control its abuses. For the outcome
of this case to be useful, it must not only prevent the company from
harming the nation further, it must demonstrate to Microsoft and others
that the law does have teeth even where a large and wealthy corporation
is involved.

2. The main public reason for limiting the severity of a sentence
has been to avoid driving the offender entirely out of business,
harming its employees, existing customers, and stockholders. With
Microsoft's monopoly profiteering unchecked lo these many years,
it is equipped with tens of billions of dollars to help it ride out
any temporary inconvenience, regardless of severity. I see no
practical need to mute the terms in order to allow the company to
continue operating. It can afford almost anything, for years.

3. All the proposed settlements I have read were complicated and
hard to administer, which probably would result in both successful
circumvention and further litigation. Simplicity is essential.
Furthermore, the burden of proof that the company is faithfully
abiding by the terms must be on the company, not on the government(s)
or the company's victims.

4. The primary means by which the company has been able to cement
its monopoly has been through enforcement of exclusionary contracts.
One effective means of limiting its power would be to specify broad
conditions under which courts are directed to rule against the
company in disputes, despite contract terms or court precedents.
(The company's monopoly and deep pockets inevitably tilt the scales,
despite any settlement terms; the court should artificially tilt
them back.)

5. Another means by which the company has excluded competition
has been to limit access to preferential prices to those who obey
it (contract or no). This mechanism should be made unavailable by
requiring that all products be available to anyone at a fixed price,
regardless of circumstances, with no permission to tailor a product
for a particular customer. Even volume discounts tilt the field
against smaller competitors; the company has no immediate need to
charge smaller customers more.

6. The company has used its control of details of its products'
implementations to exclude competitors. It does this both by changing
existing products in undocumented ways to make them incompatible with
competitors' products, and by keeping details of new products secret.
Forcing the company to publish freely all details of the external
behavior of their products -- their "APIs", "protocols", and "file
formats" -- would reduce this threat. (Note that exceptions for
"security details" have already been proven unnecessary and actually
harmful to security; given such an exception, critical competitive
details could easily be concealed.) The company should be prevented
from releasing products until the completeness and correctness of the
documentation has been established, so it has incentive to document
well.

7. The company has eliminated competition by purchasing control of
smaller companies that threatened to develop market share in areas it
hoped to dominate. The company should be prevented from acquiring
control of other companies, and should be forced to sell off
subsidiaries and divisions that would place it in new markets.

8. The company has acquired a large portfolio of patents which could be
used as an alternative means to exclude (at least smaller) competitors.
While they appear not to have used this mechanism much yet, once other
avenues of exclusion are forbidden the company will be tempted to
exercise exclusionary patent rights. These patents should be released
into the public domain immediately.

9. Much of the company's ability to attack markets comes from its cash
reserve. This should be placed in escrow, and cash metered out for
individual expenses once it is determined that they do not contribute
to monopoly dominance.

10. The penalty for failure to perform up to the terms of the final
settlement should be the wholesale loss of trade secret and copyright
status for the affected product(s).

11. Those company officers who lied under oath and falsified evidence
should immediately be prosecuted for perjury and obstruction of justice.

The way I figure it, maybe if 145 million of us all got together and
chipped in $100 each, maybe we could buy enough senior officials to make
a difference here. America wanted Bush enough that the race was so
close, and now they got him. Way back when the Finding of Fact came
out, I was on a panel on RadioWallStreet.com, and we all pretty much
agreed that a republican president would very likely look the other way.
No surprises here.

I'm going to play a bit of Devil's Advocate.
Part of my MS/DOJ apathy is not a cynicism as much as I never thought
the DOJ case was really all that important to begin with, not in the
global scheme of things. When Linux bound the browser to the desktop
with KDE 1.0, everyone thought it was a great idea, yet when MS did it a
year later, it's evil. (ok, I know, MS wouldn't let you delete their
Konquerer-clone, but hey, we've hacked around worse MS-isms before, and
we'd figure a way)

I think there's a much deeper issue here, and
the DOJ case is just like getting Al Capone on tax evasion: Taking what
we can get.

IMHO, Netscape didn't fail 100% because of Microsoft's
evil doings. Part of the blame must rest on what we discovered when
Netscape's code went open source: The codebase was buggy and a nightmare
to maintain. It's convenient to blame Microsoft, and MS does
have a long track record of doing this sort of nasty business to many
smaller companies (as detailed in the FOF) and deserves totally to get
more than a harsh word, but I don't think that's going to happen. Let's
face facts: Gates is way more
wealthy than J.Paul Getty. He's even wealthier than O.J.Simpson.

My work often touches issues of MS influence on governments and
economic development world-wide. I'm not totally convinced the breakup
of MS would have any lasting effect on these issues. The real issue
stifling propserity and innovation is not the monopoly per se, but on
the patent law and other IP restrictions MS (and many others) uses
behind its name.

The problem is not Microsoft, it's what they do,
and the fact that where they do the most damage is perfectly
legal so long as we allow those laws to exist. If RedHat was the
monopoly, it wouldn't matter, in fact it would be a bonus because any
little shop anywhere in the world would have this standards-based open
and transparent technology infrastructure to base their business. As
with automotives, there's very little chance my local machine shop is
going to market a car with more than 0.05% world market share, but they
can and do make a good living producing customized parts for vehicles
made by all the Big Players. Software should be the same.

'An unpopular opinion in populist times is always good for a
laugh, but I say lets stop squanding public money on a lost
symbolic cause and instead put the same resources into Lawrence Lessig
like causes that affect all vendors, not just the largest
target.

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